Revitalizing Fourth Amendment Protections: A True Totality of the Circumstances Test in § 1983 Probable Cause Determinations

• Author: Ryan P. Sullivan
• Position: Assistant Professor of Law, University of Nebraska College of Law
• Pages: 687-734

687

Revitalizing Fourth Amendment

Protections: A True Totality of the

Circumstances Test in § 1983 Probable

Cause Determinations

Ryan P. Sullivan*

ABSTRACT: The Article analyzes claims of police misconduct and false

arrest, specifically addressing the issue of whether a police officer may ignore

evidence of an affirmative defense, such as self-defense, when determining

probable cause for an arrest. The inquiry most often arises in § 1983 civil

claims for false arrest where the officer was aware of evidence a crime had been

committed, but was also aware of facts indicating the suspect had an

affirmative defense to the crime observed. In extreme cases, the affirmative

defense at issue is actually self-defense in response to the officer’s own

unlawful conduct. As police brutality and false arrest claims rise, so too will

the prevalence of this issue.

The Article examines rulings from all jurisdictions having addressed the topic

and highlights the matter of Thomas v. City of Galveston involving a

citizen who was arrested when attempting to stop two police officers from

stealing his generator in the aftermath of a hurricane. In a subsequent civil

suit for false arrest, the officers defended the claim by asserting they had

probable cause for the arrest, despite knowing Mr. Thomas was merely

defending his property from their own mischievous conduct. Finding for Mr.

Thomas, the court concluded that under certain circumstances, a police

officer's awareness of the facts supporting an affirmative defense can negate

probable cause. This view, however, is not universal—several other courts

have reached the opposite conclusion: that an affirmative defense bears no

relevance in probable cause analysis. An examination of rulings nationally

reveals common themes on this issue as courts struggle to reconcile the

incorporation of an affirmative defense with existing principles governing

probable cause analysis.

*

Ryan P. Sullivan, Assistant Professor of Law, University of Nebraska College of Law. My

deepest gratitude to my colleagues Richard Moberly, Eric Berger, Matt Schafer, Br ett Stohs,

Stephanie Pearlman, and Matt Novak for their thoughtful insight and generous feedback.

688 IOWA LAW REVIEW [Vol. 105:687

Consideration of an available affirmative defense when analyzing probable

cause helps to ensure accountability of police officers who unlawfully arrest a

citizen they know, or reasonably should know, committed no crime. Scenarios

such as those in Thomas v. City of Galveston are not as unique as one

might assume. The Article provides numerous examples from across the

country of courts grappling with this issue.

The Article brings some analytical coherence to the complicated legal and

factual situations that may lead courts to abandon certain traditional rules

governing probable cause in favor of more leniency for plaintiffs seeking a

remedy for police misconduct. The Article concludes with a recommendation

that courts adopt and apply a general rule that facts supporting an

affirmative defense shall be considered among the totality of facts and

circumstances available to the arresting officer, and that such exculpatory

facts shall be evaluated with the same level of scrutiny afforded inculpatory

facts.

I. INTRODUCTION ............................................................................. 689

II. OVERVIEW ..................................................................................... 692

A.SECTION 1983 FALSE ARREST CLAIM ....................................... 693

B.PROBABLE CAUSE .................................................................... 694

C.QUALIFIED IMMUNITY DEFENSE ................................................ 697

D.AFFIRMATIVE DEFENSE TO A CRIME .......................................... 700

III.THOMAS V. CITY OF GALVESTON ...................................................... 702

IV. AFFIRMATIVE DEFENSE RELEVANCE IN PROBABLE CAUSE

ANALYSIS ....................................................................................... 705

A.TOTALITY OF THE FACTS AND CIRCUMSTANCES TEST ................ 706

B.“CONCLUSIVITY” REQUIREMENT .............................................. 708

C.EFFECT OF AN AFFIRMATIVE DEFENSE ON THE CRIMINALITY

OF AN ACT .............................................................................. 710

V.AFFIRMATIVE DEFENSE INCLUSION SQUARES WITH

TRADITIONAL PROBABLE CAUSE PRINCIPLES ................................ 712

A.AN AFFIRMATIVE DEFENSE IS ASSERTED AT TRIAL IN

DEFENSE OF THE CRIME ........................................................... 712

B.NO DUTY TO INVESTIGATE FURTHER ONCE PROBABLE

CAUSE IS ESTABLISHED ............................................................ 716

C.OFFICER MOTIVES ARE IRRELEVANT IN PROBABLE CAUSE

ANALYSIS ................................................................................ 719

VI.VIABILITY OF THE RULE AND ISSUES WITH IMPLEMENTATION ....... 719

2020] REVITALIZING FOURTH AMENDMENT PROTECTIONS 689

A.OBSTACLES TO OVERCOME IN LIGHT OF THE “CLEARLY

ESTABLISHED” PRONG OF THE QUALIFIED IMMUNITY

DEFENSE ................................................................................. 720

1.Clearly Established General Constitutional Rules

Already Encompass the True Totality Rule ................. 722

2.Analyze Probable Cause First, then Qualified

Immunity ....................................................................... 725

3.The Harm of Arguendo ................................................ 727

B.BURDEN ON LAW ENFORCEMENT .............................................. 729

C.POTENTIAL IMPACT ON § 1983 ACTIONS FOR FALSE ARREST ..... 731

VII. CONCLUSION ................................................................................ 731

I. INTRODUCTION

In the aftermath of Hurricane Ike, Kerry Thomas purchased a diesel

generator that would become the sole source of power for his family’s home

and an invaluable community resource to be shared with his neighbors. Mr.

Thomas feared the generator he had purchased would be a target for thieves.

Never did he foresee, however, that the thieves he feared would be those who

swore an oath to protect him and his property from such acts. When Mr.

Thomas caught two men, who turned out to be local police officers, in the act

of stealing his generator, he issued a threat in an attempt to defend his

property: “identify yourself or you will be fired upon.”1 The officers retaliated,

beat him unconscious, and then arrested him on false charges with the

apparent motive of averting prosecution for their own misdeeds.2

In a subsequent civil suit for false arrest, the officers claimed to have had

probable cause to arrest Mr. Thomas because they had observed him issue a

threat. It was undisputed that he had issued a threat; thus, the elements of

that crime were present, and under most circumstances this alone would be

sufficient to establish probable cause and defeat a claim for false arrest. But

what about the officers’ knowledge that Mr. Thomas only issued the threat as

an attempt to defend his property from their unlawful conduct? Should

knowledge of these facts affect probable cause for the arrest?

As the district court in Thomas v. City of Galveston concluded, “under

certain circumstances, a police officer’s awareness of the facts supporting a[n]

[affirmative] defense can eliminate probable cause.”3 This view, however, is

not universal—several other courts have reached the opposite conclusion:

1. Thomas v. City of Galveston, 800 F. Supp. 2d 826, 830 (S.D. Tex. 2011). Ruling

occurred at the pleading stage and the matter did not proceed to trial; as a result, the facts set

forth in this article are as alleged by Mr. Thomas. The defendant police officers, through

pleadings and deposition testimony, provided an intra-conflicting account of the incident.

2. Id.

3. Id. at 836 (emphasis added) (quoting Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003)).